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Decision Season

Earlier this week, the Obama administration decided not to ask the whole 11th Circuit Court of Appeals to hear a constitutional challenge to the Affordable Care Act (ACA), shortening the timetable for the various cases against the ACA reaching the Supreme Court and, according to some, setting the Court to rule smack-dab in the middle of election season. Earlier this year, a three-judge panel from the 11th Circuit Court of Appeals had ruled the law's "individual mandate" -- the provision requiring people to pay a tax if they do not purchase insurance -- unconstitutional. But before we speculate whether and when the Supreme Court will uphold the ACA, we should consider the question of whether it will decide to decide at all.

Unlike the appeals court rulings on the ACA in the Sixth and 11th circuits, the majority opinions in the two cases decided by the Fourth Circuit earlier this month -- Virginia v. Sebelius and Liberty University v. Timothy Geithner -- did not rule explicitly on whether the legislation was constitutional. Instead, both lawsuits were dismissed for a lack of jurisdiction. Under Article III of the Constitution, the power of the federal courts derives from their ability to decide "cases and controversies." Since its inception, the Supreme Court has read this to mean that federal courts cannot decide constitutional cases in the abstract. You can't sue the government because you happen not to like something it does; the party bringing the suit must have "standing" -- that is, some direct stake in the application of the law. The Fourth Circuit essentially held that there was nothing for them to adjudicate.

In Virginia v. Sebelius, the court found that Cuccinelli and the state of Virginia did not have standing. The individual mandate, wrote Judge Diana Motz, "imposes no obligations on the sole plaintiff, Virginia." The state of Virginia is not directly affected by the mandate provision and hence has no standing to challenge its constitutionality, the appeals court reasoned. In Liberty University v. Geithner, Judge Motz held that the suit should be dismissed based on the related doctrine of "ripeness." Because the relevant provisions of the ACA do not go into effect until 2014 and federal law prevents pre-enforcement challenges to revenue collection, the court also lacked jurisdiction in the case of Liberty University's suit, even though Liberty University was directly affected by the ACA's employer mandate and would therefore not have the state of Virginia's standing problem.

Ordinarily, the decision of a three-judge panel composed of Clinton and Obama appointees would not be taken as a sign of what the Republican-dominated Supreme Court will do. But because the Fourth Circuit's ruling rested on jurisdictional grounds, some pundits see them as indicative of how the high court would rule, particularly if a Supreme Court decision comes out during election season. Last term's Arizona Christian School v. Winn was the latest in a lengthy string of cases in which Supreme Court conservatives have used narrow standing rules to limit access to the courts. Given this history, is it possible that the Supreme Court will follow the lead of this Fourth Circuit panel and refuse to rule on the constitutionality of the ACA for the time being?

Perhaps, but I would not advise such optimism. In the words of Yale Law School's Jack Balkin, "standing doctrine is among the most unprincipled and arbitrary parts of American constitutional law." When the Supreme Court declines to hear a case based on lack of standing, it is almost always because they are unsympathetic to the substance of the constitutional claims being pursued. So while the conservatives on the Rehnquist and Roberts Courts have consistently voted to make it more difficult to bring lawsuits regarding the separation of church and state and the environment, they have taken a much more generous view of standing where plaintiffs are challenging affirmative-action laws.

In other words, the fact that the Roberts Court has issued rulings narrowing standing rules does not mean that they will be moved by the particular standing arguments made by the Fourth Circuit. The Court rarely places priority on its self-imposed jurisdictional rules if it clashes with strongly held substantive values.

This is not to deny that, as the Atlantic's Andrew Cohen speculates, "Justice Anthony Kennedy or Chief Justice John Roberts [may] see in the jurisdictional issues a way out, a compromise, that would both dispose of the pending cases and help protect the Court from the inevitable political criticism it will receive no matter how it rules on the merits." Such an outcome is certainly possible, particularly because a ruling issued this term would probably come down right in the middle of what is likely to be the most polarized election campaign since 1964. A majority of the Court could decide that, indeed, discretion is the better part of valor. But it is only likely to do so if at least one of its Republican appointees is dubious about the constitutional challenge on its merits. If a majority of justices are convinced that the ACA violates the Constitution, they won't have any problem taking jurisdiction of the case.

Liberals who see a jurisdictional dodge as a potentially attractive escape may also want to be careful what they wish for. Any reprieve would be temporary. Once the law fully goes into effect in 2014, standing requirements will not provide much of a barrier, at least for cases like the one brought by Liberty University, even to skeptical judges. If Obama is re-elected, the chances of getting a favorable ruling can't be worse and may be better; if Mitt Romney or Rick Perry gets to select a replacement for the ailing Ruth Bader Ginsburg, on the other hand, the chances that the Affordable Care Act would survive a Supreme Court review drop precipitously.

Ultimately, the best outcome would be for the Supreme Court to reject the unserious arguments against the constitutionality of the Affordable Care Act and uphold the legislation. But if the Court is going to reject the bill, it is probably better for democracy that it be done during a time of maximum political visibility, rather than by dodging the issue initially and then striking it down with the campaign safely over. Should the Court dodge the issue to avoid a strong public response and then strike the bill down later, this would be the worst of all worlds. The public should be aware that, among other things, presidential elections are contests between competing constitutional visions.

Aside from the merits of the case, or the lack thereof, it should be somewhat disturbing to any American that some courts do not believe individual liberty, and the restriction thereof by the federal government, is not a "direct stake in the application of the law," but merely abstract.

Since the Commerce Clause has never been held to support this type of Federal mandate, the best outcome would be that the Supreme Court understands the seriousness of the Constitutional issues, and overrules the legislation.

Hopefully the SCOTUS will throw out this steaming pile of socialist dung.. If not then the next president (probably GOP) can issue an executive order giving every state, county and business an exemption from Obamacare just like Obama exempted his political friends.

I do hope the SCOTUS has the cojones to take this law and review it.

If the govt can force you to buy Healthcare and tax you if you don't then name something else that they couldn't force on the American people?

Here is what Obama’s health-care reform law has done to me. Not FOR me; TO me. BEFORE Obamacare, that is up until December 31, 2010, the family deductible for my company-paid medical coverage was $300…and it had been $300 for years. AFTER Obamacare, that is on January 1, 2011, the family deductible for my company-paid medical coverage went up to $2,800. You can do the math. And because my company is self-insured, it was a take it or leave it situation. Obama LIED when he said that if I liked the plan I currently had, I’d be able to keep it. He was WRONG. Instead, my company canceled the plan I liked and in its place substituted the aforementioned high-deductible plan. Obama LIED when he said his plan would “bend the cost curve downward.” What he really meant was: “Bend over and face downward.” Thanks, Obama!

The mandate is the side the corporations want: it forces you to buy their product. So if you want it to hurt the corporations, you better hope it is found unconstitutional. Look at it this way, if it is OK for the government to mandate you buy health insurance to protect yourself (and them), then it is perfectly OK for them to mandate you also purchase a firearm, condoms, helmets, you name it..

It should be found UNCONSTITUTIONAL. This should be a "no-brainer" for anyone who values a free and unemcoumbered society. Big Brother has no place telling ANYONE "you will be fined unless you contribute or buy something". This is ridiculous!! What's next-the government know that overweight folks by and large are more costly (medically) then those or normal weight--so they can force those overweight to join a health club or force them onto some diet (after all, these folks can CHOOSE what health club they are being forced to join, or what diet they are FORCED to try.) DO YOU NOW SEE MR. LAMB WHAT I AM GETTING AT??? THOSE WHO DO NOT READ THE CONSTITUTION ARE BOUND TO EXCEED ALL AUTHORITY.

"the best outcome would be for the Supreme Court to reject the unserious arguments against the constitutionality of the Affordable Care Act and uphold the legislation"

Unserious arguments? Only to people who believe that the government can completely control the lives of the people, that we are subjects whose every decision can be controlled "for our own good." If I own my own body, and can do with it what I will, so long as I harm nobody else, then telling me I have to have health insurance whether I want to or not is to say that there is no limit to governmental control of my life.

Since the Commerce Clause has never been restricted in its application to national industries, the best outcome would be that the Supreme Court understands the seriousness of the Constitutional issues, and rules in favor of the legislation.

If you want to live in the woods and not be a part of modern society, you should not have to buy health insurance. If you want to participate in modern society, like the driver who chooses to use an automobile, you should have to buy insurance as to avoid inflicting the huge and expensive negative externalities of your lack of foresight on others.

Well said, Comrade. Your Brother Leader would be proud of you. Are you also happy that an edict has been issued giving the government access to your medical records? And Lord only knows what other anti-liberty edicts have and will be issued.

Well said Peasant. I shall remember that you believe that our tax money should only be used to redistribute to the wealthy and not used for the prosperity of the American people. I am happy to say that I believe that the tax money given by the middle classes should be used for the middle classes and not be given to coddle and subsidize corporate America.

What does Obamacare have to with tax policy? I am arguing against Obamacare on privacy and liberty grounds, not money. That's an entirely different discussion.

Nobody has done more to refill the coffers of the evil rich - those who caused the financial meltdown of 2008 - than Presidents Bush and Obama, or at least they aided and abetted Treasurry Secretaries Paulson and Geithner, and Fed Chairman Bernanke, in doing it. If you want a discussion of where President Obama really stands on who should benefit from government largess, try reading this article in Politico, not exactly a right wing rag:

I agree with the premise that decision should be made at time of maximum political visability. If the law is overturned the 57% of the American Public that want this administrative and fiscal monstrosity destroyed will be dancing in the streets. I doubt this decision will energize the left because they were not particularly enamored of the bill either.

Follow the money. President Obama talks a good game of looking after the middle class, but he is bought and paid for.

Employees of New York-based JPMorgan gave $808,799 to Obama for his 2008 campaign, second only to Goldman Sachs Group Inc. among financial companies. Dimon was not among the Obama donors.Read more: http://www.sfgate.com/cgi-bin/...

lunaticllama's response makes no logical sense. First, the federal government is a government of limited powers. Therefore, to argue that its commerce power has "never been restricted in its application to national industries" is just factually false. Second, the individual mandate applies to individual American citizens, not to "industries." Therefore, that power is even more limited.

again lunaticllama spouts pure drivel. I have rarely had health insurance throughout my 57 years on this planet and I have NEVER failed to pay all my medical bills. I have cost lunaticllama one red cent. I am no freeloader.

How is forcing a person to give up money anythingother than a tax? Jesus you don't have to DO or NOT DO a damn thing, justspend. Big deal. Id10ts up in here and in the general public. What a surpriseROTFFLMFAO that anyone anywhere believes this is litigate-able in the firstplace it's like believing in UFOs or Fairies. Courts should be closed entirelyto argument about opinion and idiotology.

That said, it's a terrible law.First and foremost, no one can tell what it means. Congress does this all thetime, passes a law that contains provisions it believes local majoritiesapprove, with the cost (fees taxes regulation uncertainty) to be imposed laterby unelected bureaucrats. Second, it neither sticks it to unpopular folks andsteals their money, one approach that definitely works up to a point, nor doesit empower consumers, so all it does to 'control costs' is to jawbone abouttechnology and to empower bureaucrats, who have never in history reduced acost.

But it's better than just repealingit. More have coverage, more have to participate in costs as well as inbenefits, and at least the jawboning is included. The Court indeed should outto throw the whole CASE out. There is no case just aggrieved special interests.No constitutional argument either the damn government is authorized by theconstitution to do any imaginable thing whatsoever, it just is supposed tofollow some procedures in doing so, which it has done in this case.

The world view argument matters tothe evil ruling class, which includes the activists of all stripes. To heckwith that argument, both sides, and with those people, both sides. A ruling classis supposed to first preserve its ability to rule and second defend and expandthe power of what it rules; ours is incompetent to do either. So of course theyonly make things worse for the rest of us. Tom Clancy knew what to do with thesepeople: what Osama did, only successfully. I’m sorry an enemy killed any of us,but he sure killed the wrong ones, both from his point of view and from ours. Acrises wasted, as the Raminator would say.

We need market forces and modernityin health care. And it is reasonable to try to inject both, and in the processto tax the lot of us to expand access. We’d get costs we might survive, medicalcare we might survive, and a social; contract we could maintain. This law isnone of those. What do you expect when Congress not only disposes but proposes,and gets to negotiate with itself and its cronies. I worked for Mr. Obamabefore. I am working against him now. He’s toast. Perhaps the broadening ofaccess and of payers will survive from his law; I hope so but I doubt it.Stupid ways of doing “good” things just are stupid, with no good in them.

Hmmm, "assistant professor of political science" gives opinion on legal procedure. Dog shits in woods. Which one has more relevance to the Supreme Court? At least the the dog did something with substance...

I have to laugh at the use of the moronic Wickard v. Filburn precedent to support your contention about "unserious arguments." That court decision was one of the most ridiculous in the history of Supreme Court decisions. A farmer growing wheat on his own property for his own consumption affected interstate commerce? If you think that decision made sense, you are the one making an "unserious argument."

If this law is upheld we have a constitution in name only. There will be no limit to federal power. Nothing you do can not be twisted into somehow affecting an area of our economy that in some way is unique and somehow is tied to everyone.

If some decision does not affect commerce in some way, a quick federal law can fix that.

To progressives, if the government does not specifically allow something you can't do it. Progressives want control over everything because they think they are superior to everyone and thus NEED to tell you how to live.

Obviously the laws they make do not apply to themselves. Ruling the people is hard and rulers shouldn't be held back by laws.

In the realm of "progressive" thinking, using one ridiculous ruling to support another ridiculous interpretation that suits your purposes is just fine.

I really don't understand why "progressives" are so attached to the ACA. If it is constitutional, so would be a mandate to privatize Social Security. If it is unconstitutional, then their case for implementing a single-payer system becomes stronger (since Medicare's constitutionality is generally accepted).

False analogy. I'm only required to purchase liability insurance for driving an automobile. I'm not required to protect myself (just others). If you don't have health insurance and can't afford to pay for healthcare, then you go without it (at least in a rational world). It's as simple as that. If you want to offer subsidies, that's one thing, but don't force people to do it.

My faith was long ago shaken by Bush v Gore and stopped believing these people ever made consistent opinions on political issues....

or, so I thought, Scalia is bound by Raitch (one would think) and I can't see Kennedy and Roberts relishing the idea of dismantling the New Deal by Judicial fiat. Certainly, people like Thomas and George Will (!) and Randy barnett would love to return to the Lochner days, but I don't see how an institutionally conservative guy like Roberts does.

I still see this law being upheld as 6-3 or 7-2.

I guess, my one hope is that if they uphold the 11th Circuit, they do so in a way which preserves the 11th Circuit ruling. Without the mandate, private insurance companies would wither and die. Hello, single payer.

There are plenty of limits to Federal power and all the hand-wringing in the world cannot make it less so.

Yes, progressives do seek to rule your life by providing access to health insurance and, in the even you cannot pay, they want to pay for part of it so you can. Those progressives are downright bad people for caring about others

Do you think states should have the right to veto or at least challenge the healthcare law? Or have their senators and congressman in Washington already voted for them? Come discuss: http://www.votocracy.com/poll

The arguments presented to the constitutionality of the AFA are not only serious, but quite powerful when reading the constitution. The only non serious arguments being presented here is the whole idea the supreme court won't hear this case. The supreme will hear this case and then correctly rule that the mandate is unconstitutional

I have read the case several times. How is growing dope in your own house for your own use fall under the definition of the words "interstate" or "commerce." You don't have to be a lawyer to use a dictionary. Only a lawyer could come up with reasoning as contorted as the Wickard decision. Are you saying that the Supreme Court has never been wrong?

Using the reasoning behind that decision, Congress could constitutionally outlaw all of us from growing vegetables in our back yard.

This has nothing to do with Obama, dufus, and everything to do with your company being run by assholes who think the sheep they work for are not smart enough to know that the provisions of the law do not take effect until 2014.

Although, I find it cute that every other health plan in America has sky-rocketed over the last 10 years, but yours has been "the same for years).

Please take a minute out of your busy day and READ THE POLLS. This is an unpopular law that was championed by a popular President (until this law) and passed in an unpopular way (remember all the "middle of the night, behind closed doors" rhetoric)by an unpopular Congress (read Pelosi's numbers, review 2010 mid term election results). So for you to make your final point ...

"But if the Court is going to reject the bill, it is probably better for democracy that it be done during a time of maximum political visibility, rather than by dodging the issue initially and then striking it down with the campaign safely over. Should the Court dodge the issue to avoid a strong public response and then strike the bill down later, this would be the worst of all worlds. The public should be aware that, among other things, presidential elections are contests between competing constitutional visions."

...is either stupid, a lie, or both, ie. stupid lie. The elections will support the will of the people when this Supreme Court strikes this law down.

OK, then by your reasoning, it would be constitutional for Congress to prohibit American citizens from growing vegetables in their back yard. If we are growing vegetables in our back yard, then we are not buying it from someone else thus affecting the market.

By the way, appeal to authority is an argumentative fallacy.

As far as precedent goes, the Plessy v. Ferguson decision stood for 58 years before the court overturned it. The fact that a precedent has been followed for decades doesn't make it right.